1. The case originated in an application
(no. 7577/02) against Ukraine lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Ukrainian national, Mrs Mariya
Ivanivna Bochan (“the applicant”), on 17 July 2001.

2. The applicant was represented by her
son, Mr I. Bochan, a lawyer practicing in Ternopil. The Ukrainian Government
(“the Government”) were represented by their Agents, Mr Y. Zaytsev
and Mrs I. Shevchuk.

3. On 20 January 2006 the Court decided
to give notice of the application to the Government. Under the provisions
of Article 29 § 3 of the Convention, it decided to examine the merits
of the application at the same time as its admissibility. It also decided,
pursuant to Rule 41 of the Rules of Court, to give priority to the application.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1917 and
lives in the town of Ternopil.

A. Background of the case

5. In 1989 her husband and son, Mr B.P.
and Mr B.I., became members of the Cooperative Society for Construction
and Repair “Kooperator” (the “Society”). On 22 May 1990 the
Ternopil Town Executive Committee (the “Committee”) transferred
two plots of land in Ternopil to the Society for the construction of
three houses. By decision of 14 November 1990, the Committee transferred
a part of that land to the applicant's husband and son for the erection
of a two-flat house. On 27 November 1990 the general assembly of the
Society adopted a decision similar to the Committee's decision of 14
November 1990. On an unspecified date the Committee transferred the
land, with which Mr B.P. and Mr B.I. had been provided, back to the
Society.

6. On 2 December 1991 the general assembly
of the Society, headed by Mr B.I., decided to terminate the Society's
activity. It further decided to transfer the Society's property to its
members. In particular, Mr B.P. was granted the left side of a house
and Mr B.I. was granted its right side. As it was later established
by the domestic courts, in 1991 there was only the foundation of the
future house. In December 1991 the Society closed its bank account.
The Society's state registration was annulled in September 1995.

7. The house was erected by autumn 1994.

8. Between 1995 and 1997 Mr B.P. unsuccessfully
lodged with the Ternopil Town Council (the “Council”) a number of
applications, requesting the Council to grant him a right to use the
plot of land on which the left part of the house had been constructed.

9. On 17 February 1997 Mr B.P. died.
The applicant inherited all his possessions.

10. On 8 April 1997 the Council granted
Mr B.I. a right to use the plot of land on which the right side of the
house had been built.

11. In June 1997 the applicant lodged
with the Ternopil Town Court an administrative law complaint against
the Council for failure to consider the request to grant her a right
to use the plot of land on which the left part of the house had been
constructed. On 9 July 1997 the court found in favour of the applicant
and ordered the Council to consider the merits of the applicant's request
at its next session.

12. On 23 July 1997 the Council granted
Mr M. a right to use the plot of land, on which the left side of the
house had been built, for construction purposes.

B. Criminal proceedings

13. In 1996 Mr M. lodged with the Ternopil
Regional Prosecutor's Office a criminal law complaint against Mr B.I.,
accusing the latter of fraud. Mr M. alleged that Mr B.I. had unlawfully
attempted to take possession of the left part of the house, which Mr
M. had bought from him according to a sales contract of 18 March 1993.
On 9 July 1996 the prosecutors initiated criminal proceedings against
Mr B.I.

14. In 1997 Mr B.I. lodged with the Ternopil
Regional Security Service Department a criminal law complaint, accusing
Mr M. of fraud. Mr B.I. alleged that Mr M. had falsified the official
documents in respect of the left part of the house in order to become
its owner. On 13 March 1997 the department initiated criminal proceedings
against Mr M.

15. On 25 May 1997 both criminal cases
were joined. On 15 July 1997 the Ternopil Town Police Department terminated
the criminal proceedings on the ground of absence of corpus delicti in the actions of Mr B.I. and Mr M. The police
established that Mr M. had not been a member of the Society in 1991.
It also found that there were two different copies of the decision of
the general assembly of the Society of 2 December 1991, one of which
confirmed the membership of Mr M. and contained his name instead of
the name of Mr B.P., the latter being mentioned in the other copy of
that decision. The police held that the existence of two different versions
was of no importance, as none of the copies had been duly certified
by a notary. It further stated that, according to the expert examination
of the sales contract of 18 March 1993, the contract had been forged
by way of combination of two printed texts. The police also found that
the contract had no binding force, as it had not been certified by a
notary or by the Society.

C. First set of civil proceedings

16. In July 1997 the applicant instituted
proceedings in the Ternopil Town Court against the Council, seeking
the annulment of the latter's decision of 23 July 1997 to grant Mr M.
a right to use the plot of land, on which the left side of the house
had been built. She further requested the court to oblige the Council
to grant her a right to use the plot of land under the left side of
the house for an indefinite period of time. The applicant was represented
in the proceedings by her son, Mr B. I. Mr M. joined the proceedings as
a third party.

17. In the course of the proceedings,
the applicant submitted that her late husband had been the owner of
the left part of the house, which had been constructed on the plot of
land at issue, as he had been granted that part of the house pursuant
to the decision of the Society of 2 December 1991. After her husband's
death she inherited his property, including the left part of the house.
The construction works were carried out at her and her late husband's
expense. She further argued that, although her son had initially agreed
to sell the part of the house to Mr M., the latter had refused to pay
the price, upon which they had agreed. Thus, the left part of the house
was not sold to Mr M.

18. Mr M., in his turn, argued that in
1993 he had bought from Mr B.I. the foundation of the left part of the
house and some construction materials, which formally belonged to Mr B. P.
Mr M. further argued that they had agreed that Mr B. I. would complete
the construction works. The latter having failed to do so, Mr M. built
the left part of the house at his own cost. Between 1993 and 1994, Mr M. paid
Mr B. I. around USD 10,0001
by instalments. Following this, Mr M. refused to pay Mr B. I. higher amounts,
as he had completed the construction works himself. Mr M. submitted copies
of two documents dated 20 January 1995, according to which Mr B. I. had
received from Mr M. 1,550,000,000 karbovanets (the former transitional
currency of Ukraine before September 1996) for the left part of the
house and that the latter had built that part of the house and reimbursed
the money, which Mr B. I. had paid for the construction materials. Mr M. alleged
that Mr B. I. had signed these documents as the head of the Society.

19. The applicant, in reply, contended
that the documents, submitted by Mr M. in support of his claim that he
had constructed the house and that he had purchased it, including the
contract of 1993, had been forged. Referring to the general interpretation
of the relevant domestic law given by the Plenum of the Supreme Court
of Ukraine, she further argued that, even assuming that Mr M. had participated
in the construction of the left part of the house, he could not claim
ownership rights in its respect.

20. The Council submitted that its decision
of 23 July 1997 was lawful, as Mr M. had provided it with the documents
which had proved that he had constructed the left part of the house.

21. On 27 August 1997 the Ternopil Town
Court found for the applicant and quashed the Council's decision of
23 July 1997. It further ordered the Council to grant the applicant
the right to use the land at issue for an indefinite period of time.
The court held that Mr M. had not qualified to be granted that right,
as he had not been a member of the Society and there was no information
in the notary's register that the Society had transferred the plot of
land in question to him.

22. The Council appealed in cassation.

23. On 29 September 1997 the Ternopil Regional
Court informed the Supreme Court of Ukraine about the Council's request
for the case to be transferred to another court. The Council alleged
that the applicant's son was a member of the family of one of the judges
of the Ternopil Regional Court. On 7 October 1997 the Supreme Court ordered
that the appeal in cassation against the first instance court's decision
was to be heard by the Khmelnytsk Regional Court, instead of the Ternopil
Regional Court. The applicant was not informed either about the Council's
request or about the decision of the Supreme Court to reassign the case.

24. On 20 November 1997 the Khmelnytsk
Regional Court upheld the decision of 27 August 1997.

25. On 10 April 1998 the Deputy Prosecutor
of the Khmelnytsk Region lodged a protest with the Presidium of the Khmelnytsk Regional Court,
seeking initiation of supervisory review proceedings in the applicant's
case. On 27 April 1998 the Presidium allowed the protest, quashed the decisions of 27 August and 20 November
1997, and remitted the case for a fresh consideration to the Ternopil
Town Court. It held that the courts had failed to examine all the circumstances
of the case. In particular, they had disregarded the sales contract
of 1993 and the receipts for the money paid by Mr M. pursuant to that
contract. The Presidium emphasised that there was no evidence in the
case file that Mr B.P. had been a member of the Society. It also noted
that there had been no building at the time when the Society had decided
to transfer its part to Mr B. P. Moreover, the parties failed to submit
documentary evidence in support of their claims for ownership rights.

26. On 22 June 1998 the Supreme Court ordered
the Ternopil Town Court to transfer the case to the Khmelnytsk Regional
Court, the latter being responsible for selecting a first instance court
to reconsider the case. According to the Government, the Ternopil Town
Court did not comply with the instructions of the Supreme Court and
did not transfer the case.

27. On 3 July 1998 the Ternopil Town
Court found for the applicant. On 25 August 1998 the Ternopil Regional
Court upheld the decision of the first instance court. The courts of
both instances held that there was enough evidence that Mr B.P. had
been a member of the Society. This fact had been established by the
Ternopil Town Court in its judgment of 9 July 1997, which had not been
appealed against and had become final, and the applicant could not be
held responsible for the absence of other documents proving the membership
of her deceased husband. The courts also held that the decision of the
general assembly of the Society of 2 December 1991 had, in fact, provided
for the transfer of certain objects situated on the plot of land at
issue, i.e. the foundation and some construction materials, erroneously
referring to them as a building. With regard to the sales contract of
1993, the courts stated that Mr B.I. had not been entitled to sell the
left part of the house, irrespective of whether he had acted in his
capacity as the head of the Society or as a private person. They also
referred to the findings of the police of 15 July 1997 that the contract
had been falsified. Similarly, they found that the documents submitted
by Mr M., in particular a copy of the decision of the general assembly
of the Society of 2 December 1991, stating that he had been one of its
members and had been granted the left part of the building, and the
receipts in respect of the construction expenses were not valid. In
any event, a contribution to the construction expenses could not be
a valid ground for an ownership claim.

28. By letter of 12 October 1998, the
Deputy President of the Supreme Court requested the Ternopil Town Court
to send the case file to the Supreme Court for supervisory review. By
the same letter, he informed the Ternopil Town Court and Mr M. that
the execution of the judgment of 3 July 1998 was suspended.

29. On 22 December 1998 the Deputy President
of the Supreme Court lodged a protest with the Chamber in Civil Cases of that court, seeking
the initiation of supervisory review proceedings in the applicant's
case. On 24 March 1999 the panel of three judges of the Supreme Court
allowed the protest, quashed the decisions of 3 July and 25 August 1998,
and remitted the case for a fresh consideration. It held that there
was no evidence that the left part of the house was owned by either
the Society or Mr B.P. Moreover, there was no information as to the
latter's membership of that Society, and the lower courts had not verified
whether the house had been erected by him in compliance with relevant
regulations. The panel further stated that the first instance court
had failed to take into consideration the written testimonies of the
persons, who had participated in the construction of the house. It stressed
that its findings should be taken into account in the new consideration
of the case.

30. On 25 August 1999 the Ternopil Town
Court found for the applicant. The court for the most part reiterated
the findings contained in the decision of 3 July 1998. It also held
that the Society had been the owner of every construction object on
the land at issue before it transferred the title to these objects to
its members, including Mr B.P. On 28 September 1999 the Ternopil Regional
Court upheld the decision of 25 August 1999.

31. On 6 June 2000 the Deputy President
of the Supreme Court lodged a protest with the Chamber in Civil Cases of that court, seeking
again the initiation of supervisory review proceedings in the applicant's
case. On 5 July 2000 the panel of three judges of the Supreme Court allowed
the protest, quashed the decisions of 25 August and 28 September
1999, and remitted the case for a fresh consideration. It held that
the lower courts had failed to take into account the instructions contained
in its decision of 24 March 1999. The panel reiterated that the first
instance court had failed either to verify whether the Society had been
the owner of the objects in question; whether the Society had been in
fact liquidated and, if so, when it had been liquidated; whether the
Society had been granted a construction permit; or to establish who
had actually constructed the part of the house at issue. The panel found
that the Society had not had authority to transfer the land to third
parties and its members had not had rights to build houses on that land.
It finally held that Mr M. had in fact obtained the plot of land at
issue as well as all the documentation in respect of the left part of
the house, which remained in his actual possession.

32. On 9 October 2000 the Supreme Court,
following the request of Mr M., invited the Khmelnytsk Regional Court
to assign the case to one of the first instance courts in the Khmelnytsk
region. On 1 November 2000 the regional court transferred the case to
the Chemerovetsk Town Court.

33. In November 2000 Mr M. lodged a counter
claim, seeking recognition of his ownership rights in respect of the
left part of the house.

34. On 19 January 2001 the Chemerovetsk
Town Court ruled in favour of Mr M. and rejected the applicant's claims.
It held that Mr M. had lawfully bought the foundation of the left part
of the building and had completed the construction himself, which was
supported by the evidence examined in the proceedings. In particular,
the court stated that the contract of 1993 was valid, as it had been
seized by the police from the flat of Mr M. in 1997, and the two documents
of 20 January 1995 were, according to the expert's conclusions, also
valid. The court further noted that the written testimonies, certified
by a notary, of 16 witnesses, who had carried out construction works,
and Mr D., who had been heard by the court as a witness, confirmed that
Mr M. had built the left part of the house at his own cost. The court
also relied on the letter of 28 February 1996, submitted by Mr M., in which
the Ternopil Regional Prosecutor's Office stated that, according to
the conclusions of its inquiry into the matter, the left part of the
house was built by Mr M. The court also found that the latter was in
actual possession of that part of the house, as he had been paying all
the communal charges in its respect. The court refused to admit as evidence
copies of the bills of costs in respect of construction materials, submitted
by the applicant, on the ground that it was not possible to establish
whether these construction materials had been used to build the left
part of the house.

35. On 16 February 2001 the applicant
requested the Supreme Court to transfer the case to another court on
the grounds that it would be difficult for her to participate in the
hearings before the Chemerovetsk Town Court with regard to her age and
state of health, on one hand, and the distance between her place of
residence and the place of the hearing, on the other. On 25 February 2001
the Supreme Court rejected her request as unsubstantiated.

36. On 1 March 2001 the Khmelnytsk Regional
Court upheld the decision of 19 January 2001. It also considered that
Mr B.P. had not been a member of the Society, as there were no documents
proving his membership and he had resided in another location.

37. In the course of the proceedings
before the Chemerovetsk Town Court and the Khmelnytsk Regional Court,
the applicant requested the courts to summon the witnesses, on whose
written statements Mr M. had relied to show that he had constructed the
left part of the building. She argued that these testimonies were false
and that some of these witnesses could confirm her submissions that
certain construction works had been carried out at her and her late
husband's expense. The courts did not reply to her request.

38. In September 2001 the applicant lodged
an appeal in cassation against the decisions of 19 January and 1 March
2001 under the new transitional cassation procedure. She complained
of the lower courts' incorrect assessment of the evidence. The applicant
also argued that the courts had refused to summon the witnesses on whose
written testimonies they had relied in their decisions. She maintained
that neither she nor her representative had had an opportunity to question
these witnesses.

39. On 22 August 2002 the Chamber in
Civil Cases of the Supreme Court considered the merits of the applicant's
appeal in cassation and rejected it. The Supreme Court held that Mr
M. had lawfully purchased a part of the foundation of the building and
had valid grounds to use the plot of land on which the left part of
the building had been constructed. The court also held that the written
statements of the witnesses, confirming that Mr M. had completed the construction,
had been lawfully admitted as evidence in the case.

D. Second set of civil proceedings

40. In 2002 the applicant and Mr B. I.
instituted another set of proceedings in the Ternopil Town Court against
Mr M., two other members of the family of Mr M., and the Ternopil Town
Council, seeking the annulment of the ownership certificate of Mr M.
in respect of the house. The applicant and Mr B. I. also sought the annulment
of certain other official documents, in which it was mentioned that
Mr M. had built a part of the house.

41. On 12 November 2002 the court found
against the applicant and Mr B. I. On 4 February 2003 and 26 May 2004, respectively,
the Ternopil Regional Court of Appeal and the Supreme Court upheld the
decision of the first instance court.

42. According to the applicant, the courts,
which considered her second claim, based their decisions on the findings
of the Chemerovetsk Town Court, the Khmelnytsk Regional Court and the
Supreme Court of Ukraine made in the course of the first set of civil
proceedings (see paragraphs 34, 36 and 39 above).

II. RELEVANT DOMESTIC LAW

A. Code of Civil Procedure of 1963 (“the
Code”) (repealed as of 1 September 2005)

43. Under Article
133 § 1 of the Code, the President of the Supreme Court of Ukraine and
his or her deputies, as well as the presidents of the regional courts
were entitled to transfer a case from one court to another, upon request
of the parties, other participants in the proceedings, the prosecutor,
or on their own motion. Article 133 § 2 envisaged that the court, which
was dealing with the case, could transfer it to another court, (a) if
the former court found that it would be more expedient to examine the
case in the court which enjoyed jurisdiction over the place of the principal
events of the case, or in the court other than the one chosen by the
plaintiff; (b) if the former court allowed the well-founded request
of the defendant, whose place of residence had been previously unknown,
to hear the case in the court which enjoyed jurisdiction over the place
of the defendant's actual residence. No formal decision was adopted
concerning the transfer of the case.

44. According to Article
135 of the Code, the case, which was transferred from one court to another
pursuant to Article 133, should be accepted by the recipient court. No
disputes between the courts over their jurisdiction were allowed.

46. Under Article 337 the court that considers
a case in supervisory review proceedings had power:

(a) to leave a judgment, ruling, resolution without
changes, and refuse a protest;

(b) to quash, in full or in part, a judgment,
ruling, resolution and to remit a case for a fresh consideration to
court of first or cassation instance;

(c) to quash, in full or in part, a judgment,
ruling, resolution and to discontinue proceedings or leave a case without
consideration;

(d) to uphold one of the judgments, rulings, resolutions
in a case;

(e) to change a judgment, ruling or resolution
or to adopt a new decision, without remitting the case for a fresh consideration,
if it does not require collection or an additional verification of evidence,
the circumstances of the case are established by court of first instance
fully and correctly, but an error was made in the application of the
norms of substantive law.

47. Article 341 provided that instructions of
the court which had reviewed a case were binding on the court which
later re-examined it. These instructions were binding within the limits
envisaged by Article 319 of the Code. According to paragraph 2 of the
latter provision, court of cassation had no competence to establish
facts which had not been established or disproved by a contested judgment,
to decide in advance on question of reliability of a particular piece
of evidence, prevalence of certain evidence, and on questions as to
which norm of substantive law was to be applied or which decision was
to be made in the course of new consideration of the case.

B. Code of Civil Procedure of 2004 (“the
new Code”) (entered into force on 1 September 2005)

48. According to Article 353
of the new Code, the parties to the proceedings are entitled to lodge
with the Supreme Court of Ukraine an appeal against the court decisions,
which were subject to review in cassation, in view of the exceptional
circumstances.

49. Under Article 354,
the court decisions in civil matters may be reviewed in view of exceptional
circumstances if they are appealed against on the ground that an international
judicial authority, whose jurisdiction was recognised by Ukraine, found
that a decision in a civil case violated the international commitments
of Ukraine.

50. Articles 356 and
357 provide that the appeal on the above ground shall be examined by
the panel of at least two-thirds of judges of the Chamber in Civil Cases
of the Supreme Court under the rules applicable to cassation proceedings.

51. Pursuant to Article 334,
the panel has power

(a) to reject an appeal;

(b) to quash, in full or in part, the decision
at issue and to remit the case for a fresh consideration to the court
of first instance, the court of appeal or cassation;

(c) to quash the decision of the court of appeal
or cassation and to uphold the decision which was wrongly quashed;

(d) to quash the decisions in the case and to
discontinue the proceedings;

(e) to change the decision or to adopt a new decision
on the merits of the case.

The decision of the panel is final.

C. Law of Ukraine of 3 February 2006 on the Enforcement of Judgments and the Application of the Case-Law
of the European Court of Human Rights (“the Law”)

52. The relevant parts
of the Law read as follows:

“This Law regulates relations emanating from:
the State's obligation to enforce judgments of the European Court of
Human Rights in cases against Ukraine; the necessity to eliminate reasons
of violation by Ukraine of the Convention for the Protection of Human
Rights and Fundamental Freedoms and protocols thereto; the need to implement
European human rights standards into legal and administrative practice
of Ukraine; and the necessity to create conditions to reduce the number
of applications before the European Court of Human Rights against Ukraine.”

Article 1.Definitions

“1. For the purposes of this Law the following
terms shall be used in the following meaning:

...

the Convention – the 1950 Convention for the Protection of
Human Rights and Fundamental Freedoms and Protocols thereto agreed to
be binding by the Verkhovna Rada of Ukraine;

the Court – the European Court of Human Rights;

...

Creditor – a) an applicant before the European Court of Human
Rights in a case against Ukraine in whose favour the Court rendered
its judgment or in whose case the parties have reached a friendly settlement,
or his representative, or his successor...

Enforcement of a judgment – a) payment of compensation to
the Creditor; b) adoption of individual measures; c) adoption of general
measures;

...”

Article 10.Additional individual measures

“1. Individual measures shall be adopted in
addition to the payment of compensation and are aimed at restoring the
infringed rights of the Creditor.

2. Individual measures include:

a) restoring as far as possible the legal status
which the Creditor had before the Convention was violated (restitutio in integrum);

...”

2. The previous legal status of the Creditor
shall be restored, inter alia, by means of:

a) reconsideration of the case by a court, including
reopening of the proceedings in that case;

b) reconsideration of the case by an administrative
body.”

Article 11. Actions which the Office
of the Government's Agent shall take with regard to individual measures

“1. The Office of the Government's Agent shall
within three days from receipt of the Court's notification that the
judgment has become final:

a) send the Creditor a notification explaining
his right to initiate proceedings on the review of his case and/or to
reopen the proceedings according to the law in force...”

THE LAW

I. Alleged violation of Article 6 § 1 of the
Convention

A. Complaint about the unfairness of the proceedings
and the lack of impartiality and independence

53. The applicant
complained under Article 6 § 1 of the Convention about the outcome and
unfairness of the first set of civil proceedings, alleging that the
courts were not independent and impartial. In particular, she claimed
that the Chemerovetsk Town Court and the Khmelnytsk Regional Court,
which had considered her case on 19 January and 1 March 2001, respectively,
had adopted their decisions under the pressure of the Supreme Court,
which, in its turn, had been interested in a particular outcome of the
case. She further alleged that the courts had failed to provide sufficient
reasons for their decisions, and had not allowed her to question the
witnesses, on whose written statements the decisions had been based.
Article 6 § 1 of the Convention reads, in so far as relevant, as follows:

“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”

54. The applicant also complained that
she had had no effective access to domestic remedies, as her case had
been considered by the courts which had been too far away from her place
of residence. She invoked Articles 13 and 17 of the Convention, which
read as follows:

Article 13

“Everyone whose rights and freedoms as set
forth in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has been
committed by persons acting in an official capacity.”

Article 17

“Nothing in [the] Convention may be interpreted
as implying for any State, group or person any right to engage in any
activity or perform any act aimed at the destruction of any of the rights
and freedoms set forth herein or at their limitation to a greater extent
than is provided for in the Convention.”

55. The Court observes that the applicant's
allegations under Articles 13 and 17 of the Convention amount to allegations
of an unfair hearing and, therefore, must be examined under Article 6 § 1
of the Convention.

1. Admissibility

56. The Court notes that the Government
have not raised any objection as to the admissibility of the above complaints.

57. The Court considers that this part
of the application raises issues of fact and law under the Convention,
the determination of which requires an examination of the merits. It
finds no ground for declaring it inadmissible.

2. Merits

a. Submissions of the parties

58. The Government submitted that the
applicant had had a fair hearing in her case. In particular, the Government
stated that the courts, dealing with the applicant's case, had been
independent and impartial and the applicant had not been put at a substantial
disadvantage vis-à-vis her opponent, irrespective of the fact that the
Supreme Court had neither consulted the applicant before transferring
her case to a court of different territorial jurisdiction nor provided
reasons for such transfer. The Government maintained that, if the courts
had transferred the case on their own initiative or upon the request
of a prosecutor, they would have neither consulted the parties in advance
nor provided reasons for the transfer. The Government also stated that
the case was transferred to the courts, which did not enjoy territorial
jurisdiction over the matter, on the ground that the applicant's son
was a member of the family of one of the judges of the Ternopil Regional
Court.

59. The applicant disagreed. She alleged
that the Supreme Court had reassigned the case with the aim of obtaining
a decision which would have corresponded to its findings on the facts
of the case and which would have been favourable to the opposite party
in the proceedings. She further stated that the fact, that she had not
been informed of the reasons for the reassignment, confirmed her above
allegations. The applicant did not comment whether her son had family
links with any regional court judge, but stated that she personally
had no relatives in the said court.

b. The Court's assessment

60. The Court considers that in the circumstances
of the instant case it has to determine whether, taken as a whole, the
proceedings at issue before the Ukrainian courts were compatible with
the applicant's right to have a fair hearing of its case by an independent
and impartial tribunal within the meaning of Article 6 § 1 of the Convention.

61. The Court recalls at the outset that judicial
systems characterised by the supervisory review procedure which allowed
a judicial decision which had become final and binding to be quashed
by a higher court on an application (protest) made by a State official were incompatible with the
principle of legal certainty that is one of the fundamental aspects
of the rule of law for the purposes of Article 6 § 1 of the Convention
(see Brumărescu
v. Romania [GC], no. 28342/95, § 61, ECHR 1999-VII, Sovtransavto Holding v. Ukraine, no. 48553/99, § 72, ECHR 2002-VII,
and Ryabykh
v. Russia,no. 52854/99, §§ 66, 24 July 2003).

62. The Court observes that the applicant's case
was reconsidered on three occasions, following the protests lodged by the Deputy Prosecutor of the Khmelnytsk
Region and the Deputy President of the Supreme Court against a total
of six consecutive decisions of the first and second instance courts.

63. However, the quashing of a final judgment
is an instantaneous act, which does not create a continuing situation,
even if it entails a re-opening of the proceedings as in the instant
case (see, mutatis mutandis, Voloshchuk v. Ukraine (dec.),no. 51394/99, 14 October 2003, and Sardin v. Russia (dec.), no. 69582/01, ECHR 2004-II). The Court
observes that the decisions upon the requests for the supervisory review
in the applicant's case were adopted on 27 April 1998, 24 March 1999 and
5 July 2000 and thus more than six months before the date on which the
application was submitted to the Court (17 July 2001). In accordance with
Article 35 § 1 of the Convention, the Court therefore cannot examine this
particular issue as such.

64. The Court notes that the applicant's submissions
mainly concern four issues, namely:

(a) whether the courts, which dealt with the applicant's
case, were independent and impartial;

(b) whether the fact that the case was heard by
the Chemerovetsk Town Court and the Khmelnytsk Regional Court prevented
the applicant from participating in the proceedings before these courts;

(c) whether the principle of equality of arms
was observed with regard to the failure of the domestic courts to hear
the witnesses whose written statements the courts admitted as evidence;
and

(d) whether the final decisions given by the Chemerovetsk
Town Court on 19 January 2001, the Khmelnytsk Regional Court on 1 March
2001, and the Supreme Court on 22 August 2002 were sufficiently substantiated.

65. As regards the first issue, the Court reiterates
that in order to establish whether a tribunal can be considered “independent”
for the purposes of Article 6 § 1, regard must be had, inter alia, to the manner of appointment of its members and
their term of office, the existence of safeguards against outside pressures
and the question whether it presents an appearance of independence (see,
among many other authorities, Findlay v. the United Kingdom, judgment of 25 February 1997, Reports
1997-I, p. 281, § 73).

66. The Court further recalls that the existence
of “impartiality”, for the purposes of Article 6 § 1, must be determined
according to a subjective test, on the basis of the personal conviction
and behaviour of a particular judge in a given case – that is, no member
of the tribunal should hold any personal prejudice or bias – and also
according to an objective test – that is, ascertaining whether the
judge offered sufficient guarantees to exclude any legitimate doubt
in this respect (see, among many other authorities, Bulut v. Austria, judgment of 22 February 1996, Reports 1996-II, p. 356, § 31, and Thomann v. Switzerland, judgment of 10 June 1996, Reports 1996-III, p. 815, § 30). Under the objective test,
it must be determined whether there are ascertainable facts which may
nevertheless raise doubts as to the courts' impartiality. In this respect
even appearances may be of a certain importance. What is at stake is
the confidence which the courts in a democratic society must inspire
in the public and above all in the parties to the proceedings.

67. The Court notes that the applicant did
not contest the personal impartiality of the judges who sat in her case.
On the other hand, she argued that the combination of several factors
objectively gave rise to doubts about the independence and impartiality
of the judges of the Supreme Court and the judges to whom the case had
been transferred on 9 October 2000. In particular, these factors were
the reassignment of the case by the Supreme Court, which expressly disagreed
with the findings of the lower courts as to the facts, and its failure
to consult the applicant and to provide reasons for such reassignment.

68. In the present case it appears difficult to
dissociate the question of impartiality from that of independence, as
the arguments advanced by the applicant to contest both the independence
and impartiality of the court are based on the same factual considerations.
The Court will accordingly consider both issues together (see Langborger v. Sweden, judgment of 22 June 1989, Series A no. 155,
§ 32) in determining whether there are ascertainable facts which may
raise doubts as to the courts' independence and impartiality.

69. The Court notes that the grounds
for the repeated quashing of the judgments in the applicant's favour
and reconsideration of the case were based on the disagreement of the
Khmelnytsk Regional Court and the Supreme Court with the lower courts'
assessment of the facts. Furthermore, in its decision of 5 July 2000,
the Supreme Court stated its position concerning one of the core issues
of the case, namely whether the Society had had the right to transfer
the part of the house and the corresponding plot of land to third parties
(see paragraph 31 above).

70. The Court further observes that, after
the courts of two levels of jurisdiction, namely the Ternopil Town Court
and the Ternopil Regional Court, had made, for the second time, findings
opposite to those of the Supreme Court, the latter transferred the applicant's
case to the courts of different territorial jurisdiction. No procedural
decision was issued in this respect.

71. The Court notes that it is the role
of the domestic courts to manage their proceedings with a view to ensuring
the proper administration of justice. The assignment of a case to a
particular judge or court falls within the margin of appreciation enjoyed
by the domestic authorities in such matters. There is a wide range of
factors, such as, for instance, resources available, qualification of
judges, conflict of interests, accessibility of the place of hearings
for the parties etc., which the authorities must take into account when
assigning a case. Although it is not the role of the Court to assess
whether there were valid grounds for the domestic authorities to assign
a case to a particular judge or court, the Court must be satisfied that
such reassignment was compatible with Article 6 § 1, and, in particular,
with its requirements of objective independence and impartiality.

72. In the Court's view, the reassignment of cases
is not, as such, a problem under the Convention. However, the Court
notes that the applicant was not informed of the reasons for the reassignment
of her case and she did not have an opportunity to comment on the matter.
In the absence of any procedural decision on the reassignment, it remains
unclear whether the applicant's arguments concerning possible obstacles
to her participation in the proceedings due to her age and state of
health were duly considered by the courts.

73. The Court further notes that, according to
the Government's submissions, the applicant's case was transferred to
courts of a different territorial jurisdiction on the ground that there
were doubts as to the impartiality of the Ternopil Regional Court.

74. The Court observes that at various stages
of the proceedings the Supreme Court made several attempts, one of them
having been unsuccessful, to reassign the case to other courts in a
different locality (see paragraphs 23, 26 and 32 above). Thus, it may
be well assumed that there appeared to be legitimate grounds for such
reassignment, which could outweigh the applicant's arguments concerning
possible difficulties of her access to the lower courts. Nonetheless,
the Court notes that the failure of the Ternopil Town Court to comply
with the Supreme Court's instruction of 22 June 1998 to transfer the
case to another jurisdiction (paragraph 26 above) was not addressed
in any of the ensuing decisions, and it was only at the request of Mr M.
that in 1999 the case was transferred (paragraph 32 above). This reassignment
was ordered by the Supreme Court after having expressly disagreed with
the findings of the lower courts as to the facts and having stated its
position concerning one of the principle aspects of the case, namely
the Society's competence to grant property, even before the new assessment
of facts and taking of evidence by the lower courts took place (see
paragraph 31 above). Considering in addition the Supreme Court's failure
to provide reasons for the reassignment, the Court is of the opinion
that the applicant's fears that the judges of the Supreme Court, including
its Deputy President, had a prefixed idea concerning the outcome of
the case and that the judges to whom the case had been transferred on
9 October 2000 would have to consider the case in accordance with the
Supreme Court's view could be held to be objectively justified.

75. The Court considers that this overall procedural
situation also disturbed the principle of legal certainty (see Ryabykh v. Russia,no. 52854/99,
§§ 51-52, ECHR 2003-IX). The fact that the Supreme Court's views on
the subject of the applicant's case differed from those of the lower
courts could not be a sole ground for its repeated re-examination. Higher
courts' power of review should be exercised for correction of judicial
mistakes, miscarriages of justice, and not to substitute the lower courts'
assessment of facts.

76. The Court further notes that there are other
aspects of the proceedings at issue which raise doubts that the applicant's
right to a fair hearing within the meaning of Article 6 § 1 of the
Convention was complied with.

77. In particular, the Court observes that the
applicant complains about the lack of sufficient reasons for the courts'
decisions and their refusal to call the witnesses, on whose written
statements these decisions were based.

78. In this respect, the Court recalls that, according
to its established case-law reflecting a principle linked to the proper
administration of justice, judgments of courts and tribunals should
adequately state the reasons on which they are based. The question whether
a court has failed to fulfil the obligation to state reasons, deriving
from Article 6 of the Convention, can only be determined in the light
of the circumstances of the case (see Ruiz Torija v. Spain, judgment of 9 December 1994, Series A no.
303-A, § 29). The Court further recalls that, although the right to
obtain the attendance and examination of witnesses is guaranteed by
Article 6 § 3 (d) of the Convention to those who are charged with a criminal
offence, Article 6 § 1 does not lay down any rules on the admissibility
of evidence or the way it should be assessed in civil cases, leaving
these matters for regulation by national law and the national courts
(see, among other authorities, Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).
Nevertheless, the Court notes that the provisions of Article 6 §§ 2 and
3 have a certain relevance outside the strict confines of criminal law
in that these principles are enshrined in the general notion of a fair
trial as embodied in Article 6 § 1 of the Convention (see, mutatis mutandis, Dombo Beheer B.V. v. the Netherlands, judgment of 27 October
1993, Series A no. 274, §§ 32-35, and Albert and Le Compte v. Belgium, judgment of 10 February 1983,
Series A no. 58, § 30).

79. Turning to the circumstances of the
instant case, the Court notes that the dispute concerned the title to
part of a building and, as a consequence, to the plot of land on which
that part of the building was situated. The national courts had to establish
whether the applicant had legitimate grounds to claim that her late
husband had been the owner of the part of the building in question before
his death.

80. The applicant's claims were based
on two main arguments. Firstly, according to the applicant, the left
part of the house had been constructed at her and her late husband's
expense. Secondly, her husband had lawfully obtained a title to the
left part of the house pursuant to the decision of the general assembly
of that Society of 2 December 1991 and, thus, neither the Society nor
Mr B. I. had been entitled to sell that part of the house.

81. The Court observes that the domestic courts
rejected the applicant's first argument, relying on the written statements
of sixteen witnesses, the statements of Mr D. who had been heard in person,
and the letter of the prosecutor's office of 28 February 1996, confirming
that Mr M. had built the left part of the house at his own expense. The
applicant contested the reliability of this evidence. She also argued
that some of the witnesses, whose written statements the courts examined
in the proceedings, could have confirmed her submissions concerning
the construction of the house. The applicant requested the courts to
summon these witnesses in order that she could question them. The courts
gave no reply to her request and none of the sixteen witnesses was called.

82. It is impossible to ascertain whether the
courts simply neglected to deal with the applicant's request or whether
they intended to dismiss it and, if that was their intention, what their
reasons for so deciding were. The Court considers that such state of
affairs was detrimental to the exercise of the applicant's right to
effectively present her case in the meaning of Article 6 § 1 of the Convention.

83. Furthermore, the Court finds that the domestic
courts, having rejected the applicant's second argument concerning the
construction of the left part of the house as unsubstantiated, remained
silent as to validity of the decision of the general assembly of that
Society of 2 December 1991. Moreover, they did not reply to the applicant's
submissions that, according to the findings of the police of 15 July
1997, the contract of 1993, pursuant to which the Society had sold the
same object to Mr M., had been forged.

84. The Court notes that questions concerning
the validity of the decision of the general assembly of that Society
of 2 December 1991 and of the contract of 1993 appeared to have been
decisive for the outcome of the case and therefore required a specific
reply. It is not the Court's task to decide what would have been the
most appropriate way for the domestic courts to deal with these questions.
However, in the Court's opinion, the domestic courts, by ignoring the
applicant's submissions concerning the above questions altogether, even
though they were specific, relevant and important, fell short of their
obligation under Article 6 § 1 of the Convention to give adequate reasons
for their decisions.

85. The Court finds that, having regard to the
circumstances in which the applicant's case was reassigned by the Supreme
Court and the lack of sufficient reasoning in the domestic decisions,
these issues being taken together and cumulatively, the applicant's
right to a fair hearing by an independent and impartial tribunal within
the meaning of Article 6 § 1 of the Convention was infringed. Accordingly,
there has been a violation of Article 6 § 1 of the Convention.

B. Complaint about the length of the proceedings

86. The applicant
complained that the length of the first set of civil proceedings had
been incompatible with the “reasonable time” requirement, provided
in Article 6 § 1 of the Convention.

87. The Court observes that
the overall duration of the proceedings before three levels of jurisdiction
was around three years and three months, excluding the intervals between
20 November 1997 and 27 April 1998, 25 August 1998 and 24 March 1999, 28 September 1999
and 5 July 2000, when no proceedings were pending (see Yemanakova v. Russia, no. 60408/00, § 41, 23 September 2004,
and Efimenko v. Ukraine, no. 55870/00, § 51, 18 July 2006). The
period falling within the Court's competence ratione temporis lasted around three years and one month. The
Court considers that this period does not disclose any appearance of
a violation of the reasonable-time requirement under Article 6 § 1 of
the Convention. It follows that this part of the application is manifestly
ill-founded within the meaning of Article 35 § 3, and must be rejected
pursuant to Article 35 § 4 of the Convention.

II. Alleged violation of Article 1 of Protocol No. 1

88. The applicant complained that she had
been unlawfully deprived of her possessions on account of the outcome
of the first set of civil proceedings. She relied on Article 1 of Protocol
No. 1 to the Convention, which provides as follows:

“Every natural or legal person is entitled
to the peaceful enjoyment of his possessions. No one shall be deprived
of his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of international
law.

The preceding provisions shall not, however,
in any way impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions or
penalties.”

89. The Government submitted that, under the relevant
domestic law as applied and interpreted by the courts in the course
of both sets of civil proceedings, the applicant neither had a right
nor a claim amounting to a legitimate expectation within the meaning
of Article 1 of Protocol No. 1 in respect of the part of the house in
question. The Government therefore maintained that the applicant's complained
should be rejected as unsubstantiated.

90. The applicant argued that she had been the
lawful owner of the left part of the house as an heir of her late husband.
She alleged that she had been unlawfully deprived of that property by
the courts, which had considered her first civil claim. The applicant
further submitted that the outcome of the second set of civil proceedings
was irrelevant to the present case, as the courts, which had dealt with
her claims in 2002-2004, had based their decisions on the findings of
the courts, which had considered her first civil claim.

91. The Court notes that the complaint under Article
1 of Protocol No. 1 is directly connected with those examined under
Article 6 § 1 of the Convention. Having regard to its findings under the
latter Article (see paragraph 85 above), the Court concludes that this
complaint is admissible, but does not raise any issue different from
its findings above. Consequently, it does not consider it necessary
to rule on the applicant's complaint based on Article 1 of Protocol No. 1
(see Glod
v. Romania, no. 41134/98, § 46, 16 September 2003, and Albina v. Romania, no. 57808/00, § 43, 28 April 2005).

III. ALLEGED VIOLATION OF Article 14 of the
Convention in conjunction with Article 1 of Protocol No. 1

92. The applicant alleged that she had
suffered discrimination in the enjoyment of her property rights, contrary
to Article 14 of the Convention read in conjunction with Article 1 of
Protocol No. 1, on account of the outcome of the first set of civil proceedings.

93. The Court observes that the applicant
provided insufficient substantiation in respect of the above allegations.
Moreover, the applicant failed to specify on which grounds she had allegedly
been discriminated against. The Court therefore concludes that the applicant's
complaints under Article 14 of the Convention read in conjunction with
Article 1 of Protocol No. 1 must be rejected as manifestly ill-founded
pursuant to Article 35 §§ 3 and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF
THE CONVENTION

94. Article 41 of the Convention provides:

“If the Court finds that there has
been a violation of the Convention or the Protocols thereto, and if
the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”

A. Damage

95. The applicant claimed UAH 10,000,0002
in respect of pecuniary and non-pecuniary damage.

96. The Government argued that the applicant's
just satisfaction claims were unsubstantiated.

97. The Court does not discern any causal link
between the breach of Article 6 § 1 of the Convention and the alleged
pecuniary damage. There is, therefore, no ground for an award under
this head. The Court also notes that the applicant is entitled under
Ukrainian law to request a re-hearing of her case in the light of the
Court's finding that the domestic courts did not comply with Article 6
in her case (see paragraphs 48-52 above).

98. As to compensation in respect of non-pecuniary
damage, the Court notes that the applicant must have suffered some distress
and anxiety on account of the uncertainty and despair and accordingly,
ruling on equitable basis, as required by Article 41 of the Convention,
awards the applicant EUR 2,000.

B. Costs and expenses

99. The applicant did not submit any claim under
this head. The Court therefore makes no award.

C. Default interest

100. The Court considers it appropriate that the
default interest should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaints about the alleged unfairness of the
proceedings and about a violation of Article 1 of Protocol No. 1 admissible,
and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the
Convention;

3. Holds that it is not necessary to examine separately the applicant's
complaint under Article 1 of Protocol No. 1;

4. Holds

(a) that the respondent State is to pay
the applicant, within three months from the date on which the judgment
becomes final according to Article 44 § 2 of the Convention, EUR 2,000
(two thousand euros) in respect of non-pecuniary damage, plus any tax
that may be chargeable, to be converted into the currency of the respondent
State at the rate applicable on the date of settlement;

(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the
above amount at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing
on 3 May 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.